Peninsula lawmakers seek changes

Bill would protect property owners from squatters

Posted: Monday, March 10, 2003

By HAL SPENCEPeninsula Clarion

A legal doctrine with roots in common law by which squatters may acquire ownership rights to the land of another under certain specific conditions would be excised from Alaska statutes under a bill introduced Friday by Sen. Tom Wagoner, R-Kenai.

The Doctrine of Adverse Possession "allows a person who has no claim of ownership to squat on someone else's property and, as a result of their illegal trespass, the squatter could actually secure title to the property they are squatting on," Wagoner said in a press release. "That is simply legal thievery -- to me that is offensive and it needs to stop."

Senate Bill 93 would repeal the doctrine, giving private property owners an added degree of security in knowing their land could not be taken away summarily, Wagoner said.

The Doctrine of Adverse Possession applies only to privately owned land, not state land. Wagoner said he believed the doctrine also might apply to Native lands and possibly University of Alaska and Mental Health Trust lands.

However, according to state law, Mental Health Trust lands are considered state lands for purposes of the adverse possession statute and, thus, are protected from adverse possession. Likewise, university land may not be acquired by adverse possession under state law. State law also specifically prevents the doctrine's use on land controlled by the Alaska Railroad Corp.

The doctrine may apply to Alaska Native Claims Settlement Act lands.

The Doctrine of Adverse Possession is applicable in Alaska where someone lives on land for an uninterrupted period, seven to 10 years, depending on other factors. However, simply dwelling on land one does not own doesn't automatically confer ownership. Other legal principles are involved. For instance, the squatting must be "hostile," "notorious" and "continuous."

According to Barron's Law Dictionary, "hostile" does not mean ill will, but only that the use of the land is without permission of the owner coupled with a claim of ownership. "Notorious" means "open, undisguised and conspicuous to the point that such possession is generally known or recognized." Continuous means an uninterrupted length of time.

Wagoner said some owners of Alaska property might be vulnerable to such takeovers.

"In Alaska, especially, many people buy large parcels of land. Often that land is very remote and this doctrine puts undue hardships upon those landowners to police their property," Wagoner said. "This bill simply accords equal dignity and protection to private land ownership, already afforded to the government."

But is adverse possession a chronic problem in Alaska?

A brief look at a list of past cases shows adverse possession cases running back more than a century in Alaska. But land disputes are hardly uncommon generators of litigation and plenty are to be found in the courts of all states.

Wagoner said he filed the bill not because of some egregious circumstance in his Senate District Q, but because Senate President Gene Therriault, R-Fairbanks, asked him to. Wagoner said bills addressing adverse possession have been before the Legislature before.

For his own part, Wagoner said the state and federal governments already exempt their own land from adverse possession. He said he thought it was time for the doctrine to disappear for private property owners, as well.

"Why force an individual to take legal action to protect his property rights?" he asked. "Only the attorneys benefit."

The doctrine no longer has relevance, Wagoner said.

"The fact that our government would subject private property owners to a burden that the government itself refuses to bear is intolerable."

Adverse possession, sometimes called "squatter's rights," can be traced to the Middle Ages, a time when record keeping systems were poor. Land disputes often would be settled by proving use. It continues in use today, especially in cases involving building encroachments.

Attorney Ron Drathman said there were some good reasons for the principle of adverse possession to remain on the books. For instance, take the case of someone who unknowingly builds his home across the property line of his neighbor and the neighbor is fully aware of it, but says nothing. If enough time goes by, the rightful owner can lose claim to the land.

"The doctrine protects you" in the case of inadvertent blunder, he said. "It balances the equities."

Another example would be where someone builds a fence and encloses some of his neighbor's land. As long as the requirements of adverse possession were met, the possessor would be free from a suit by the owner, effectively becoming the owner.

Bringing suit and seeking an injunction to remove the trespasser can void adverse possession. Merely filing the suit interrupts the "continuous" nature of the possession.

The "adverse" nature of the possession can be eliminated more easily, according to law sources. An owner could send a registered letter to his neighbor acknowledging the fence enclosed his property and granting his neighbor the right to use the land for some period of time. That renders the use something other than adverse.

Wagoner said SB 93 does not affect adverse possession claims that are based on "color of title," a term that applies to the case where an adverse possessor "has some good faith claim to the land that is based on a deed or some other written document" such as in cases where that deed turns out to be invalid. Under Alaska law, the time needed for adverse possession under color of title is seven years.

The bill also would not affect existing rights that someone already may have acquired through adverse possession, he said.

Senate Bill 93 has been referred to the Senate's Labor and Commerce and Judiciary committees.